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TMI Blog2024 (5) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... (JNCH), Nhava Sheva. The order [order-in-original no. 132/2013-14 CC(I), JNCH dated 23rd October 2013] of Commissioner of Customs, Jawaharlal Nehru Customs House (JNCH) denying eligibility thereto at the time of import with consequent recovery of duty foregone of Rs. 1,32,73,596 in full under section 28(1) of Customs Act, 1962, along with interest thereon under section 28AB of Customs Act, 1962, confiscation of the same under section 111(o) of Customs Act, 1962 though with offer of redemption, under section 125 of Customs Act, 1962, on payment of fine of Rs. 55,00,000 along with penalty of like amount under section 114A of Customs Act, 1962 while invoking section 112 and section 114AA of Customs Act, 1962 for imposing penalty of Rs. 10,00,000 under each on Shri Gulshan Chopra is under challenge. 2. The factual matrix, set out on behalf of appellant by Learned Counsel, and the evaluation of facts in the impugned order being at variance, it behoves us to recall the chronology of events leading to seizure, ostensibly for breach of condition in exemption notification by retention of the goods at the Mumbai premises of importer. It is admitted that, upon clearance, the machinery was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of the Hon'ble Supreme Court in Gammon India Ltd v. Commissioner of Customs, Mumbai [2011-TIOL-60-SC] and of the Tribunal in GMR Infrastructure Ltd v. Commissioner of Customs (Exports), Mumbai [2019-TIOL-3598- CESTAT-MUM], in Patel Engineering Ltd v. Commissioner of Customs (Imp), Mumbai [2012-TIOL-2027-CESTAT-MUM], in Venkata Rao Infra Projects v. Commissioner of Customs (Imp), Mumbai [2019- TIOL-1127-CESTAT-MUM], and in Ashoka Buildcon -Valecha Engineering Ltd v. Commissioner of Customs (Imp), Mumbai [2013- TIOL-2347-CESTAT-MUM]. Reliance was placed on decisions of the Tribunal in Malu Paper Mills Ltd v. Commissioner of Central Excise, Nagpur [2018 (363) ELT 302 (Tri-Mum)] and in Pradeep Master Batches Pvt Ltd v. Commissioner of Customs (Export), Mumbai [2017 (348) ELT 692 (Tri-Mum)] to support imposition of penalty on the individual-appellant. 5. The decisions cited on behalf of the respondent range from ineligibility of constituent of 'joint venture' to avail benefit of notification intended for awardee of contract in eligible projects which only the 'joint venture' was, strict construction enjoined by the decision in re Dilip Kumar precluding benefit from being availed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he prescribed time. That, however, is a distinct engagement encapsulated in an enforceable undertaking binding such entities that conform to entitlement at the threshold. 12. At the threshold, the prescribed condition of eligibility must be met. Other than departments of Government and their statutory instruments, private entities or public commercial enterprises that contract with these departments or instruments fulfil the condition. The exemption notification does not, in relation to entitling of the entities, employ the expression 'for' to qualify such entitlement. Impliedly, the entitlement arises from a contractual engagement that permits access to the exemption notification. Not unnaturally, such a contract may terminate for manifold reasons. A mutual belief of such engagement that may, for some reason or the other, be disengaged even before commencement should not operate retrospectively to disentitle of the entity that derived the advantage of the exemption at the threshold. Indeed, it would appear that, with the insistence on retention and utilisation, the safeguard of public interest distinguishes the eligibility at the threshold from the continuing eligibility therea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act, 1962 and, thus, forayed into the character and behaviour of the importer which a taxing statute has nothing to do with except in relation to goods between landing in the territory of India and clearance for home consumption. In the context of the present dispute, the blossoming of events prior to import and after clearance, save for conditions of import, are irrelevant and reference to such in the adjudication order appears to be proverbial straw clutching of which does little to sanctify the adjudicatory process or promote the credibility of the adjudication order. We are concerned with deployment of goods that, having been procured on 'high sea sale' in a contractually secured transaction, are endorsed as not being for the intended project. Neither has the sale been voided nor has the award of work, and certified as being in favour of the importer by the competent authority, been questioned in the order. The threshold eligibility is, thus, beyond controverting. 8. There is no doubt that the goods were not used for the intended project which, for whatever reason and not relevant in determining the consequences of non-utilization, is certainly cause for triggering du ..... X X X X Extracts X X X X X X X X Extracts X X X X
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